Elizabeth A. Jennings v State Of Oklahoma

F-2017-356

Filed: May 2, 2019

Not for publication

Prevailing Party: State Of Oklahoma

Summary

# Elizabeth A. Jennings appealed her conviction for Permitting Child Sexual Abuse. Conviction and sentence of fourteen (14) years imprisonment. Judge Lewis dissented.

Decision

The Judgment and Sentence of the District Court is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there an impermissible hypothetical posed by the prosecutor during voir dire in violation of Oklahoma statutory law and the Fourteenth Amendment to the United States Constitution?
• Did the admission of extensive evidence of co-defendant John Jennings' sexual misconduct deny Appellant a reliable sentencing proceeding in violation of the Fourteenth Amendment to the United States Constitution?
• Did the District Court's refusal to provide the jury with an instruction regarding mandatory sex offender registration deny Appellant a reliable sentencing proceeding in accordance with the Fourteenth Amendment to the United States Constitution?

Findings

• The court did not err regarding the prosecutor's use of a hypothetical during voir dire.
• The evidence of co-defendant's sexual misconduct was properly admitted and did not deny Appellant a reliable sentencing proceeding.
• The trial court did not abuse its discretion by refusing to provide the jury with a sex offender registration instruction.
• The Judgment and Sentence of the District Court is AFFIRMED.

F-2017-356

May 2, 2019

Elizabeth A. Jennings

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

JOHN D. HADDEN, JUDGE:

Appellant, Elizabeth A. Jennings, was tried and convicted at a jury trial in Tulsa County District Court, Case No. CF-2016-1836, of Permitting Child Sexual Abuse, in violation of 21 O.S.Supp.2014, § 843.5(G). The jury recommended a sentence of fourteen (14) years imprisonment. The Honorable William D. LaFortune, District Judge, presided at trial and sentenced Appellant in accordance with the jury’s verdict.¹ Jennings now appeals, raising three (3) propositions of error before this Court:

I. THE PROSECUTOR PRESENTED THE JURY PANEL WITH AN IMPERMISSIBLE HYPOTHETICAL DURING VOIR DIRE IN VIOLATION OF OKLAHOMA STATUTORY LAW AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION;

II. THE EXTENSIVE EVIDENCE OF CO-DEFENDANT JOHN JENNINGS’ SEXUAL MISCONDUCT WHICH WAS PRESENTED AT APPELLANT’S TRIAL SERVED TO DENY APPELLANT A RELIABLE SENTENCING PROCEEDING IN VIOLATION OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION. APPELLANT’S SENTENCE MUST BE MODIFIED TO A SHORTER TERM; and

III. THE DISTRICT COURT’S REFUSAL TO PROVIDE THE JURY WITH AN INSTRUCTION ADVISING JURORS OF MANDATORY SEX OFFENDER REGISTRATION AS A RESULT OF APPELLANT’S FELONY CONVICTION DENIED APPELLANT A RELIABLE SENTENCING PROCEEDING IN ACCORDANCE WITH THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and the parties’ briefs, we find that no relief is required under the law and evidence. Appellant’s judgment and sentence is AFFIRMED.

Proposition I. The prosecutor did not impermissibly pose a hypothetical during voir dire based upon the facts of the case or the law that would apply. Nor did the prosecutor ask the jurors to prejudge the case. The State used the challenged example as part of a broader discussion to assess whether the jurors could follow the law and convict someone for permitting a crime as opposed to actually committing it. The trial court did not abuse its discretion in allowing the prosecutor’s question because it was designed to test the jurors’ impartiality, not test their willingness to accept the State’s theory of the case. See Rule 6, Rules of the District Courts of Oklahoma, Title 12, O.S.2011, Ch. 2, App.; Robinson v. State, 2011 OK CR 15, ¶ 16, 255 P.3d 425, 431; Black v. State, 2001 OK CR 5, ¶ 19, 21 P.3d 1047, 1058; Kephart v. State, 1951 OK CR 33, 93 Okl. Cr. 451, 461, 229 P.2d 224, 230. Proposition I is denied.

Proposition II. The trial court did not abuse its discretion in admitting other crimes evidence relating to John Mark Jennings’ molestation of J.J. pursuant to 12 O.S.2011, § 2404(B). The total other crimes evidence was highly relevant to show Appellant’s knowledge, absence of mistake and motive. This evidence was not unfairly prejudicial. The danger of unfair prejudice, confusion of the issues and misleading of the jury was minimized by the trial court’s adept administration of the OUJI-CR 9-9 limiting instruction immediately before J.J.’s testimony. This same instruction was also provided to the jury in the written charge at the end of the trial. The trial court’s findings that there was a visible connection between the offense charged and the prior offense sought to be proved; that the other crimes evidence was necessary to support the State’s burden of proof, was not merely cumulative, and was not being admitted as subterfuge to show the jury that Appellant was a person who deserved to be punished; that the evidence of the other crimes was admitted solely for a limited purpose; and that the probative value of this evidence outweighed the danger of unfair prejudice to Appellant are fully supported by the record. See 12 O.S.2011, § 2404(B); Thompson v. State, 2019 OK CR 3, ¶ 19, ___ P.3d ___; Vanderpool v. State, 2018 OK CR 39, ¶ 32, ___ P.3d ___; Owens v. State, 2010 OK CR 1, ¶ 12, 229 P.3d 1261, 1266; Burks v. State, 1979 OK CR 10, ¶¶ 14-16, 594 P.2d 771, 774-75. Proposition II is denied.

Proposition III. No abuse of discretion stems from the trial court’s failure to give Appellant’s requested instruction concerning sex offender registration. We have repeatedly rejected this claim, finding that registration under the Sex Offender Registration Act is not a salient feature of the law in sex crimes cases upon which the trial court is required to instruct. Barnes v. State, 2017 OK CR 26, ¶ 24, 408 P.3d 209, 218; Duclos v. State, 2017 OK CR 8, ¶ 18, 400 P.3d 781, 785-86; Reed v. State, 2016 OK CR 10, ¶¶ 14-19, 373 P.3d 118, 122-23. Appellant provides no good reason for us to change course. Proposition III is denied.

DECISION

The Judgment and Sentence of the District Court is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. 1 Appellant shall be required to serve not less than eighty-five percent (85%) of this sentence before becoming eligible for parole. 21 O.S.Supp.2015, § 13.1(14).
2. 2 See Rule 6, Rules of the District Courts of Oklahoma, Title 12, O.S.2011, Ch. 2, App.; Robinson v. State, 2011 OK CR 15, I 16, 255 P.3d 425, 431; Black U. State, 2001 OK CR 5, IT 19, 21 P.3d 1047, 1058; Kephart U. State, 1951 OK CR 33, 93 Okl. Cr. 451, 461, 229 P.2d 224, 230.
3. 3 See 12 O.S.2011, § 2404(B); Thompson v. State, 2019 OK CR 3, "I 19, _P.3d_; Vanderpool U. State, 2018 OK CR 39, II 32, [P.3d__; Owens v. State, 2010 OK CR 1, I 12, 229 P. 3d 1261, 1266; Burks U. State, 1979 OK CR 10, 19 14-16, 594 P.2d 771, 774-75.
4. 4 Barnes U. State, 2017 OK CR 26, "I 24, 408 P.3d 209, 218; Duclos U. State, 2017 OK CR 8, I 18, 400 P.3d 781, 785-86; Reed U. State, 2016 OK CR 10, 14-19, 373 P.3d 118, 122-23.
5. 5 Thompson U. State, 2007 OK CR 38, I 33, 169 P.3d 1198, 1209; Dennis U. State, 1994 OK CR 34, 879 P.2d 1227, 1233-34.
6. 6 See Tryon U. State, 2018 OK CR 617, I 16, 423 .3d 617, 627; Frederick U. State, 2017 OK CR 12, I 24, 400 P.3d 786, 802; Harmon U. State, 2011 OK CR 6, I 9, 248 P.3d 918, 927.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 843.5(G) - Permitting Child Sexual Abuse
• Okla. Stat. tit. 21 § 13.1(14) - Parole Eligibility
• Okla. Stat. tit. 12 § 2404(B) - Other Crimes Evidence
• Okla. Stat. tit. 22, Ch. 18, App. (2019) - Rules of the Oklahoma Court of Criminal Appeals

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Robinson v. State, 2011 OK CR 15, I 16, 255 P.3d 425, 431
• Black v. State, 2001 OK CR 5, IT 19, 21 P.3d 1047, 1058
• Kephart v. State, 1951 OK CR 33, 93 Okl. Cr. 451, 461, 229 P.2d 224, 230
• Thompson v. State, 2019 OK CR 3, "I 19, _P.3d_
• Vanderpool v. State, 2018 OK CR 39, II 32, [P.3d__
• Owens v. State, 2010 OK CR 1, I 12, 229 P. 3d 1261, 1266
• Burks v. State, 1979 OK CR 10, 19 14-16, 594 P.2d 771, 774-75
• Barnes v. State, 2017 OK CR 26, "I 24, 408 P.3d 209, 218
• Duclos v. State, 2017 OK CR 8, I 18, 400 P.3d 781, 785-86
• Reed v. State, 2016 OK CR 10, 14-19, 373 P.3d 118, 122-23
• Thompson v. State, 2007 OK CR 38, I 33, 169 P.3d 1198, 1209
• Dennis v. State, 1994 OK CR 34, 879 P.2d 1227, 1233-34
• Tryon v. State, 2018 OK CR 617, I 16, 423 .3d 617, 627
• Frederick v. State, 2017 OK CR 12, I 24, 400 P.3d 786, 802
• Harmon v. State, 2011 OK CR 6, I 9, 248 P.3d 918, 927